By ROBERT MANDER and JANICE HYDE
Sponsored jointly by the Law Library of Congress, the Burton Foundation and the law firm of Shook, Hardy & Bacon, this year's June 14 debate at the Library of Congress, the "Just Pursuit of Terrorism," continued a dialogue suggested by Chief Justice William Rehnquist for the first Holmes Debate in 2003.
The purpose of the series of debates is to create a prominent national forum to examine critical issues facing the judiciary.
Michael A Fitts, dean and Bernard G. Segal Professor of Law at the University of Pennsylvania Law School, was the program chair of this year's event. Law Librarian Rubens Medina welcomed participants, law enforcement figures and legal scholars, and cautioned that past mistakes may be "repeated if their causes are not addressed."
This year's debate looked at issues involved in the confrontation between the need for law enforcement measures to safeguard the nation's security and the toll that may take on traditional American civil liberties.
William S. Cohen, former U.S. senator and secretary of defense, served as moderator and set the historical stage for the debate by citing a number of measures that had restricted American civil liberties in the past—beginning with the Alien and Sedition Act of 1798, the suspension of the right of habeas corpus under President Abraham Lincoln during the Civil War and the internment of Japanese Americans during World War II.
"Do such measures endanger the very liberties we seek to protect?" Cohen asked.
With that question Cohen opened Round One of the formal debate: "The USA Patriot Act: Patriotism at Work or an Intolerable Law in a Constitutional Democracy?"
Defending the act was David Nahmias, deputy assistant attorney general in the Criminal Division of the Justice Department. Kim Lane Scheppele, a professor of law and sociology at the University of Pennsylvania Law School, took the opposite side of the argument.
Scheppele argued that "while much of the USA Patriot Act is fine, the things that are bad are very bad indeed. The'wall' that was torn down was the Fourth Amendment of the Constitution," which protects against unreasonable search and seizure, she said. "If it can't protect our liberties, it cannot protect our security either."
"With respect to the war on terrorism, the Fourth Amendment is gone," she declared.
"The Patriot Act protects our security and does not infringe on our civil liberties," Nahmias countered. "Most of its provisions are not controversial, and it provides us with updated tools to combat new technologies available to terrorists. " The Patriot Act "tore down the wall between ordinary criminal investigation and intelligence investigation."
By establishing substantial legislative and public oversight, an ombudsman's office in the Department of Justice and independent judicial review, said Nahmias, "we have established a consistent national standard for application of certain tools to get quick rulings instead of prolonged litigation."
"We may be in a war, but we do not want to lose the battle along the way by giving up our basic principles. We can learn from other countries, such as Germany [in the early 1930s]," Scheppele advised.
Round Two of the debate centered on "The Balance Between Freedom and National Security: Must Americans Accept Limitations on Their First Amendment Rights to Be Successful in the Battle Against Terrorism?"
Rachel Brand, principal deputy assistant attorney general in the Office of Legal Policy at the Department of Justice, was opposed by David Cole, professor at Georgetown Law Center.
"In the aftermath of 9/11, government has shifted from traditional forms of censorship to new forms, including guilt by association," Cole argued. "The most egregious provisions of the Patriot Act punish'pure speech,' which includes anyone who gives expert advice to terrorist groups, no matter what that advice is." As an example he cited two Palestinians who may be deported for distributing magazines published in the 1980s by terrorist organizations.
"I believe the First Amendment is definitely at risk," Cole held.
Brand rebutted that "stopping charities that contribute to terrorist activities but also support legitimate causes is against free speech. But all the hyperbole surrounding section 215 [titled "Access to Certain Business Records for Foreign Intelligence and International Terrorism Investigations"] of the USA Patriot Act has done as much to chill free speech as section 215 itself. This provision of the act overrides state library confidentiality laws, permits the FBI to compel production of business records, medical records, educational records and library records.
"When it comes to terrorism, prevention is the key. The Department of Justice is doing everything permissible to prevent terrorism, and'material support statutes' such as section 215 help deter terrorism. They neither prohibit free speech nor free association," Brand said.
Cole disagreed. He flatly stated that "the First Amendment is definitely at risk" and argued that under the act "any organization, anywhere" can unilaterally be designated a terrorist threat and subject to its provisions under section 215.
In his remarks at the conclusion of Round Two of the debate, Cohen pointed out that 16 provisions of the Patriot Act were due to expire shortly. "Should they sunset, or should they become permanent?" he asked, highlighting the significance of arguments raised by the two debaters.
Round Three of the debate focused on "Enemy Combatants/Military Tribunals: Fair vs. Foul Means in the War Against Terrorism."
Patrick F. Philbin, associate deputy attorney general, Department of Justice, debated against Oren Gross, associate professor of law at the University of Minnesota Law School.
Gross opened by asking, "How do we institute emergency powers without destroying those safeguards that protect us against the abuse of power?" He cited four phenomena that arise in times of armed conflict: the "trust me" mentality toward leadership; reliance on an us-versus-them dialectic; discriminatory behavior that targets others; and an assumption that crisis is normal.
Philbin countered with a sharp focus on the specifics of law, highlighting the distinction between lawful and unlawful combatants. The president, as commander in chief, has the responsibility to exercise "any and all" force necessary to achieve military ends, Philbin asserted. He specifically cited the Universal Code of Military Justice in supporting his point.
Elaborating on this point, Gross presented historical evidence for what constitutes exemption from international protections under the Geneva Conventions, other multinational treaties and American law. He documented cases of saboteurs and spies who do not enjoy recognized protections that otherwise extend to detainees and prisoners of war. However, he rejected the "failed state" argument that treats Taliban prisoners of war (POWs) as unlawful combatants.
"The Taliban was the government of Afghanistan, and whether the United States recognizes that or not is immaterial," Gross argued. "That is an overreaction."
Philbin concluded by chiding the media for what he termed "one-sided, simplistic coverage" of events concerning the treatment of detainees and POWs and cautioned against reliance on media reports. "These are complex legal issues which have not been reported in the media," he warned.
Following the formal debate, a panel of three experts participated in an "International Forum on World Terrorism" focusing on experiences in Russia, France and Spain.
Leading off the discussion and representing Russia was Evgeny Volkov, consular of the Russian Embassy in the U.S.A. in the Ministry of the Internal Affairs of the Russian Federation Liaison Office.
"Terrorism is not just a threat to one country or region, but to all mankind," Volkov said. He emphasized the need for improved international legal cooperation in matters of extradition, which should not be politically motivated. He also advocated freezing the assets of known terrorist organizations and their supporters and gaining control of traffic in weapons of mass destruction as well as of traditional weapons.
For its part, Volkov noted, Russia participates in EUROPOL and other international policing agencies. In reference to "tearing down the wall," Volkov said the walls most in need of tearing down are those that shroud terrorist activities.
Speaking to the experiences of France as a target of terrorism was Jean Pierre Picca, senior liaison legal adviser to the Embassy of France and French liaison prosecutor in the Office of International Affairs at the Justice Department.
Picca noted that France has been targeted by terrorists both inside the country and abroad since the early 1970s. In response, France has enacted special legislation to combat terrorism and instituted special prosecutorial rules in a centralized fight against terrorism. Special criminal courts have been created, as well as special statutes for cooperative witnesses.
Judges have been given special powers in France to authorize wiretaps and search-and-seizure activities to combat suspected terrorist threats, Picca said. France has also entered into a number of treaties to foster international judicial cooperation, and a victims' compensation fund has been established.
Juan Manuel Rodriguez Carcamo, assistant to the head of the legal department in the Spanish Ministry of Foreign Affairs, reviewed Spain's experiences combating terrorism.
On March 11, when terrorists struck a train in Madrid, killing 191 commuters, Spain suffered "the deadliest attack in Spanish history and the worst in Europe since 1988. But as always, Spain has considered the rule of law the best tool to fight terrorism," Carcamo said.
In Spain the fight against terrorism is also a fight for victims. "Compensation for victims is considered the responsibility of the state, including medical care and other compensation," Carcamo said. He noted that the European Union has recently enacted legislation to improve cooperation among its member states, including laws to facilitate extradition of suspects. In addition, France and Spain have agreed on joint police efforts to investigate suspected terrorist activities.
Summing up the program, Cohen advised that "we are not alone in the war on terrorism. There are no rear lines in this war—we are all on the front lines. And international cooperation is imperative.
"I urge you all to read the law and understand it. Don't assume that others know more about the law than you do. We all need a sense of balance in this and where to draw the lines. And does it bear repeating? Yes. Eternal vigilance is the price of freedom."
Robert Mander is a writer-editor and Janice Hyde is a program officer in the Law Library of Congress.